Blue Origin’s effort to conduct public-relations negotiations after the award in the context of its bid protest is insufficient to support a finding of prejudice when its proposed FY 2021 milestone payments were priced at more than times NASA’s budget for the Option A contract. “Faced with this explicit direction, Blue Origin chose to submit a proposal that did not include a $2 or $3 billion corporate contribution. The solicitation warned offerors “that the Government may evaluate proposals and award contracts without conducting discussions or post-selection negotiations,” and, “herefore, each Offeror shall submit only one proposal which represents its best approach to meeting the requirements of the solicitation.” (AR Tab 27 at 24473 (emphasis added).) “These post-award offers to contribute funds were not before NASA at the time it made its award, and NASA had no obligation to ask Blue Origin to improve its proposal by absorbing costs or lowering the price. Smith raised the figure to “over $3 billion as a Blue Origin private contribution to add valuable competition and assist in addressing NASA’s HLS Option A budget and funding shortfall.” ![]() Referring to Blue Origin President Bob Smith, Hertling states “In the protest before the Court, Mr. Blue Origin then filed suit in the Court of Federal Claims. GAO ruled against Blue Origin, as well as Dynetics, another losing bidder, on July 30. While GAO had the matter under consideration, Blue Origin founder Jeff Bezos offered to waive $2 billion of that pricetag. After NASA selected SpaceX, Blue Origin filed a protest with the Government Accountability Office (GAO). Such an approach runs directly counter to the judicial role in Administrative Procedure Act (“APA”) review, as applied in resolving bid protests.”Īs for Blue Origin picking up more of the cost, it originally bid $5.9 billion, twice SpaceX’s $2.99 billion. Blue Origin cannot use its speculative alternative proposal to establish that it would have had a substantial chance of award but for NASA’s alleged evaluation errors. That’s what the agency wanted and liked best? If we had known, we would have instead submitted a proposal that resembled the successful offer, but we could have offered a better price and snazzier features and options. Blue Origin is in the position of every disappointed bidder: Oh. “The Court has no way to perform a hypothetical evaluation to determine whether Blue Origin’s alternative proposal would even be awardable much less have a substantial chance of award. Perhaps the two most interesting revelations are that Blue Origin offered an alternative architecture and increased its offer to put in more of its own money from $2 billion to $3 billion.īlue Origin argued that it would have submitted an alternative proposal if it knew NASA would waive certain requirements as it alleged NASA did with SpaceX, but the Court found the alternative “speculative and unsupported by the record.” Credit: Blue Originįurthermore, the Court found that even if the company did have standing, it would have lost on the merits because it did not show that NASA’s conduct was “arbitrary and capricious or otherwise contrary to law.” Illustration of the “National Team” lunar lander concept (Blue Origin, Northrop Grumman, Lockheed Martin and Draper). ![]() ![]() ![]() Its price was too high and the bid was noncompliant. Government’s position that Blue Origin did not have standing to file suit in the first place because it did not have a substantial chance of winning were it not for the company’s alleged violations by NASA. The 47-page redacted Memoradum Opinion was released this morning.īasically Hertling agreed with the U.S. Government is the Defendant, and SpaceX is a Defendant-Intervenor. Hertling issued his Order of Judgment on November 4 and gave the parties until today to confer and jointly propose redactions to the Memorandum Opinion. It adds details to the brief statement from Judge Richard Hertling earlier this month that confirmed NASA’s selection of SpaceX for the first HLS system. Court of Federal Claims released the redacted report detailing why it ruled against Blue Origin in its lawsuit against NASA over the Human Landing System (HLS) contract award today.
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